My
name is Pete Wright and I'm from Deltaville Virginia. You hit a home
run with the fast track, the re-organization of the regs, and the incredible
attentiveness and interest you have shown this evening, hour after hour.
Sadly, to the disappointment of many parents, the United States struck
out with the brief filed in Schaffer v. Weast.

I'm
going to talk about the 60-day eligibility window in proposed regulation
300.301(c), but first some background.

I
have been involved with disability issues since 1950 when Washington,
D.C. public school staff told my parents I was borderline retarded and
emotionally disturbed.

I
am an attorney and have represented children with disabilities since
1978.

As
an attorney, I have had seven special education cases before the U.
S. Courts of Appeal in the Fourth and Sixth Circuits, and won five.
In the two I lost, I came into the cases late, after the case was lost
below.

I
represented Shannon Carter before the U. S. Supreme Court where we prevailed
against the Florence County South Carolina school district in a 9-0
decision in 34 days.

My
wife and I are the co-authors of four books about special education
and No Child Left Behind. We maintain the wrightslaw website. Next week,
I will provide you with my written comments about proposed changes to
the regulations.

Proposed
regulation 300.301(c) should be changed to read: "The initial
evaluation and determination whether a child is a child with a disability
must be conducted within sixty calendar days of receiving parental consent
for the evaluation, or, if the state establishes a shorter timeframe
within which the evaluation must be conducted, within that timeframe."

The
United States Code at 1414(a)(1)(C) reads that "Such initial
evaluation shall consist of procedures to determine whether a child
is a child with a disability within sixty days of receiving parental
consent for the evaluation, or, if the state establishes a timeframe
for such evaluation, within such timeframe."

Your
proposed regulation states that "The initial evaluation must be
conducted within sixty days of receiving parental consent." What
is critical is that the determination of eligibility must be made within
sixty days.

The
proposed regulation conflicts with and is inconsistent with the United
States Code which states that both the initial evaluation and the
determination of eligibility must be conducted within sixty days. In
many jurisdictions, the mere completion of an evaluation is not the
same as determination of eligibility.

I
also recommend that you insert the phrase "calendar days"
since this is already clear in proposed regulation 300.11 and Rule 6
of the Federal Rules of Civil Procedure. Too often school district staff
assume that the word "days" when in a regulation, automatically
means either "school days" or "business days."

I
also recommend that the language, "or, if the state establishes
a timeframe for such evaluation, within such timeframe," be modified
to read "or, if the state establishes a shorter timeframe for such
evaluation, within such timeframe."

In
the congressional discussions, it was clear that the purpose of this
sixty day eligibility window was to correct the problems encountered
by homeless and migrant children where the eligibility process is drawn
out over many months. With those delays, the child is lost.

The
Virginia special education regulations provide a 65 "business day"
timeline for determination of eligibility, in other words, ninety-one
calendar days. I understand that Virginia and many other states are
intending to use the exception clause to extend the eligibility timeline
far beyond the sixty calendar day window envisioned by Congress.

In
27 years of special education practice, I have regularly seen school
districts complete the evaluation process at the end of three months,
only to explain that the determination of eligibility will be delayed
because, even though your son is in the eighth grade and reading at
the 4th grade level and has an average IQ, we are not sure if the primary
disability is a learning disability or if he has emotional problems.
We are going to delay eligibility until we can have projective personality
testing and perhaps a psychiatric consultation.

Six
months later what happens, the child has dropped out of school or been
expelled.

That
was not the intent of Congress. The language in the proposed regulation
needs to be changed."

Wrightslaw:
IDEA 2004 (ISBN: 1-892320-05-3) by Peter
Wright and Pamela Darr Wright includes the full text of Parts A and
B of the Individuals
with Disabilities Education Improvement Act of 2004 (IDEA 2004)
with commentary, cross-references, strategies, and resources. The
book includes
several appendices, a glossary of acronyms, abbreviations and terms,
and a bibliography of resources.Wrightslaw:
IDEA 2004 is designed to meet the needs of parents,
teachers, advocates, attorneys, related services providers, administrators,
teachers of special education, school psychology, and education law
courses, hearing officers, and employees of district and state departments
of education.

Print
publication (168 pages, 8 1/2" x 11", perfect
bound, $14.95 plus shipping). Ship date: 2nd week of August.E-book (162 pages, 8 1/2" x 11", $9.95). Available
now. When you purchase the e-book (PDF format), you can download it
within minutes. You can read it on your computer or print it out on
your printer. There is no shipping or sales tax on e-books. Learn
more about e-books.

A
Note About Wrightslaw: Special Education Law, 2nd Edition We
expect to publish Wrightslaw: Special
Education Law, 2nd Edition after the U. S. Department
of Education issues the final special special education regulations
and the U. S. Supreme Court issues a decision in Schaffer
v. Weast. We do not expect these events to occur before January
or February 2006.